1992 SCMR 1009

Police Department through Deputy Inspector General of Police and another Appellants
versus
Javid Israr and 7 others Respondents

 Result: Appeal Accepted

 Court: Supreme Court of Pakistan
 Date of Decision: 16.2.1992
 Judge(s): Muhammad Afzal Zullah, C J, Abdul Qadeer Chaudhry ,Wali Muhammad Khan, JJ
 Case Number: Civil Appeal No 259 P of 1990

JUDGMENT

WALI MUHAMMAD KHAN, J: -- Through the instant appeal, the Police Department through
D.I.-G: Police and another, by leave of the Court has called in question the order, dated 19-3-
1990 of the Peshawar High Court, whereby the appeal filed by the appellants against the order of
Senior Civil Judge, Abbottabad, dated 22-7-1989 rejecting their application for setting aside the
ex parte proceedings, was dismissed. Leave was granted to consider whether the appellants had a
right to join the proceedings without setting aside the order of ex parte proceedings passed
against them.

The facts of the case, briefly stated, are that the acquisition proceedings were initiated at the
instance of the appellants and the lands of the respondents were acquired vide Awards Nos. 34
and 35, dated 7-7-1982 for the construction of office and residence of Police Officers. The
respondents being aggrieved of the quantum of compensation assessed by the Collector, filed
objection petition under section 18 of the Land Acquisition Act which was referred to the Court
of Senior Civil Judge/Acquisition Judge for determination of the compensation. The Court issued
process for the attendance of the appellants and on their failure to appear, they were placed ex
parte. After recording of some evidence, the appellants applied for setting aside of ex parte
proceedings ordered against them in spite of several adjournments allowed by the Court, the
appellants failed to produce evidence in support of their application and in consequence their
evidence was closed under Order XVII, Rule 3, C.P.C. Another application was filed by them
under section 151, C.P.C. for setting aside the aforesaid order which was dismissed on 22-7-1989
as incompetent. The appellants assailed the same before the High Court through an appeal which
too, was dismissed vide the impugned order.

We have heard Mr. M. Sardar Khan, Advocate-General, N: W.F.P., for the appellants, Mr. Imtiaz
M. Khan, Advocate-on-Record for the respondents and have perused the record of the case. The
learned counsel for, the appellants frankly conceded that he is not interested in the undoing of the
proceedings taken in his absence by the Court after the 'order of ex parte proceedings against him
but wants to join the proceedings after the application for setting aside the ex parte proceedings.
According to him, as a matter of fact the appellants were allowed to associate themselves in the
proceedings of the Commission appointed for the determination of the market value of the suit
land and that the appellants did take part in the said proceedings. The respondents later on raised
objections thereto and at this stage the appellants were allegedly disallowed to take part in the
Commission's proceedings. However, before the Commission could submit its report, the
participation of appellants in the Court proceedings without setting aside the ex parte order was
also resisted and, therefore, they filed the application under section 151, C.P.C. which
culminated in the impugned orders. The question for determination before us now is whether the
appellants could be disallowed to take part in the proceedings or not. This issue came up for
consideration before a learned Single Judge of the Lahore High Court in case Syed Mushtaq Ali
and others v. Master Khushi Muhammad P L D 1961 Lah. 792 and it was held therein that as
soon as a defendant defaults in appearance he is dead for the purpose of putting in appearance
and if anyone appears in Court later on, his appearance cannot be recognised as appearance for
the purpose of the suit unless he succeeds in satisfying the Court that he had good cause for his
previous non-appearance in which case the Court is empowered to set aside, the order of ex parte
proceedings against him upon such terms as the Court directs and the defendant may be heard in
answer to the suit as if he had appeared on the date fixed for his appearance. This view was,
however, dissented from in a subsequent decision of the same High Court delivered by a Single
Judge m case Ghulam Muhammad and others v. Mst. Irshad Begum and others P L D 1964
(W.P.) Lah. 782. After reviewing the provisions of the Civil Procedure Code relating to the
service of summons to the defendants and on their failure to appear the consequent order of ex
parte proceedings, the learned Judge made a distinction between the right of a defendant to be
relegated to the stage at which the order for ex parte proceedings was passed against him and his
right to join the proceedings from the stage he appears in Court. It was held that if the defendant
assigns good reasons for his nonappearance, the Court has the power to set aside the earlier order
of ex parte proceedings against him upon such terms as to costs or otherwise as the Court thinks
fit, in which case the entire proceedings taken in his absence are nullified and the proceedings
already taken have to be initiated afresh in his presence, whereas, in the case of declining to
grant his prayer for setting aside the ex parte proceedings against him the Court cannot disallow
him to take part in the further proceedings as, according to the learned Judge, the entire scheme
of the Code is that a person should be given a proper and full hearing to defend himself and it
nowhere says that the parties are to be deprived of their right of hearing and representation
before the Court. The latter judgment was followed in cases Habib Ismail Bajwa v. Khawaja
Ghulam Mohy-ud-Din P L D 1970 Lah. 428, Azizullah Khan and 4 others v. Arshad Hussain and
2 others P L D 1975 Lah. 879 and Mst. Bilqees Begum v. Syed Ali Turab etc. 1980 C L C 930.
This Court also in the case of Messrs Landhi Industrial Trading Estates Limited, Karachi v.
Government of West Pakistan 1970 S C M R 251 came to the conclusion that the learned counsel
for the defendant appearing on the date of arguments in the main case and seeking permission to
be heard regarding the maintainability of suit was wrongly deprived of the opportunity by the
Court and the ex parte decree passed thereafter without hearing him was rightly set aside
subsequently on this very ground, observing that rules of procedure laid down in the Civil
Procedure Code are not intended for retarding justice on mere technicalities.

We have considered the relevant provision of law on the subject and have gone through the
rulings for and against the proposition and find ourselves in complete agreement with the
reasonings and conclusions arrived at in the case of Ghulam Muhammad and others v. Mst.
Irshad Begum and' others referred to above followed in the other cited judgments, which is also
impliedly concurred with in the judgment of this Court in Messrs Landhi Industrial Trading
Estates Limited, Karachi v. Government of West Pakistan 1970 S C M R 251. According to
Order IX, R.6 where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then, if it is proved that the summons was duly served, the Court may
proceed ex parte. Under the following Rule 7, if the defendant at or before such hearing, appears
and assigns good cause for his previous non-appearance, he may upon such terms as the Court
directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day
fixed for his appearance. Under Order XVII, R.1, the Court has the power to adjourn the hearing
of the suit from time to time and under Rule 2 of the said Order, where on any day to which the
hearing of the suit is adjourned the parties or any of them fa11 to appear, the Court may proceed
to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other
order as it thinks fit. Reading Rules 6 and 7 of Order IX in conjunction, it is amply clear that if
the defendant in spite of service does not appear on the day fixed in the summons, the Court may
proceed with the suit notwithstanding the absence of defendant and if he, later on, is able to
assigns good cause for his previous non-appearance, he can be relegated to the stage at which he
was proceed ex parte, which nowhere lays down that the defendant shall be debarred to take part
in the subsequent proceedings if either he is not able to show good cause for the revival of the
earlier proceedings or he does not feel a necessity to undo whatever is already done in the case
and simply stands in need of contesting the suit from the later stage. Since the provisions of order
IX, have been made applicable to adjourn hearing under Order XVII, therefore, there may be
cases in which setting aside of the earlier proceedings may not be felt necessary, for instance, if
the defendant has already filed written statement and list of witnesses and is unable to put in
appearance on subsequent date, his mere joining the proceedings can serve the purpose to contest
the suit by cross-examining the witnesses of the opposite side and producing his own evidence.
Even if he has not filed written statement, he may be in a position to secure the dismissal of the
suit by raising an objection, orally, to the jurisdiction of the Court, limitation etc. In the absence
of any clear provisions in the Code of Civil Procedure prohibiting the appearance and taking part
in the proceedings by the defendant, proceeded ex parte there can be no legal bar to allow him to
defend his rights. It is the right of every defendant and also the principle of natural justice, to be
given a chance of hearing before any order is passed against his interest. The rules of procedure
are meant to advance justice and preserve rights of litigants and they are not to be interpreted in a
way as to hamper the administration of justice. As such, in the absence of any clear prohibition
in the scheme of civil procedure denying the defendant of his right to take part at any stage of the
proceedings after the order of ex parte proceedings, he can appear and defend the suit if
somehow his application for setting aside the ex parte proceedings does not succeed on account
of his failure to show good cause for his previous non-appearance. It is, therefore, held that the
defendant who had been proceeded against ex parte can take part in the subsequent proceedings
as of right.

We accordingly allow this appeal, set aside the impugned orders of the lower forums and allow
the appellant to take part in the proceedings and produce his evidence in connection with the
objections raised against the report of the Commission and also on the merits of the case. The
evidence produced by the respondents shall be considered as evidence in the case but the
appellants shall be at liberty to recall any of the witnesses already examined if they felt necessity
for it. The respondents too, shall be afforded an opportunity for rebuttal of evidence if need be.
The matter is remanded to the referee Court with a direction for the expeditious disposal of the
same. There is no order as to costs.